The tenure issue not raised while removing constitutional obstacles under Article 158, nor was this issue politically considered in any party’s manifesto as an election issue

The unduly and untimely raised recent debates by some political leaders, although premature, have again induced division in the nation in favour and against the first citizen of the country. Opinions of the Nepalese constitutional experts and jurists are also divided on the issue of presidential tenure. While the experts like Dr. Surya Dhungel, Dr. Bhimarjun Acharya and former justice Balram KC keep similar views on the ground of legality and supremacy of the explicit constitutional provision, Dr. Bipin Adhikari has however expressed some reservations based on the concept of fresh mandate and political morality. Former Chief Justice Anup Raj Sharma considers this to be a tricky political issue that no Constitution alone can resolve. As this issue relates to some serious and complicated jurisprudential issues of political and legal constitutionalism, attempts have been made in this note to briefly examine them under three sub-headings: constitutionalism of ‘presidential tenure’; constitutionalism of ‘political exist’, and constitutionalism of ‘popular legitimacy’.

Presidential Tenure:

It is linked to the supremacy of the written Constitution and international practice in a democratic society. Expressed Letters of the Constitution cannot be overridden in a political whim by anyone without duly amending it through prescribed constitutional procedure. The Article 36 C of the Interim Constitution clearly states the tenure of the President, as a new Republican Head of the State (HOS), to last until a new Constitution has not been produced. Hence, it is linked with the life of the Interim Constitution itself. President continues as long as the Interim Constitution survives. Whereas tenures of the CA Chairperson or Speaker, and even the Prime Minister who may be voted out anytime, is linked to the life of the Constituent Assembly/Legislature-Parliament. This was solely done to alleviate the dignity of the Republican Head of the State vis a vis Monarchical Head, and also to maintain the continuity of the Head of State (HOS) as a living institution as per the global practice. It is not a personal favour for anyone, neither it depends on the wishes of the incumbent.

When the Interim Constitution was amended by the full House, it was a consensus view that only new Constitution will determine the fate of the first Republican Head of State (HOS). Thus the CA election or its tenure does not have to do anything with the tenure of the HOS. The concept of fresh mandate is not applicable here, as it is not the election solely for a parliament. The tenure issue not raised while removing constitutional obstacles under Article 158, nor was this issue politically considered in any party’s manifesto as an election issue. Hence the fresh mandate was not for the Presidential post but for the urgency of political and constitutional exits for the nation which was left in a state of uncertainty, and the Supreme Court’s advice was not heard by CA. Constitutional norms were thereafter breached by the government one event after another due to constitutional gaps.

Political Exit:

Exercise of extraordinary provisions of the Interim Constitution, especially related to Ordinances (Article 88) and Removal of Difficulties (Article 158), was done for giving ‘political exit’ to the nation which had suffered through a decade long armed insurgency and prolonged peace and constitution building process that could not be concluded through the first elected inclusive Assembly. The responsible political actors and institutions could not accomplish the tasks within the extended life of the CA. Even the Supreme Court’s directives were not complied with. In such an extremely unusual situation, the President as HOS had to make a compromise based on the constitutionally odd political solution agreed with the political parties and the then Government, in the interest of the nation and as ‘protector and defender’ of the Constitution. Until and unless the newly elected CA (and its Legislature-Parliament component) endorses the whole constitutional rearrangements made for creating a Chief Justice led Government and the new Election Commission under Article 158 in an extraordinary situation, no political party or any authority has any legitimate political or constitutional ground to raise the constitutionality or political legitimacy of the Head of State (HOS) who in fact is the very primary source of their own legitimacy as elected members.

Even the Supreme Court’s legitimacy hangs in limbo until the new Legislature-Parliament endorses the extraordinary changes (including CA election results), the sources of which lies in the President’s power of removing difficulties under Articles 36 A and Article 158. The political constitutionalism of ‘constitutional exit’, during national crises and political transition, therefore, is the only jurisprudential justification of all these actions and results receiving legitimacy through people’s broad consent.

Popular Legitimacy:

The ‘Grundnorm’, ie the ultimate source of legitimacy of all political and legal changes and actions, in the words of Austin, eventually lay in the acceptability (or consent) of the people. The overwhelming participation of the people and collective voice articulated by them through their 78 percent votes, in the recently concluded elections for 575 (240 +335) seats of the CA, are glaring example of popular constitutionalism determining legitimacy. This legitimacy will receive institutional endorsement once the CA sessions are convened, followed by parliamentary approval of the ‘extraordinary majors’ undertaken under Article 158. No one but the President alone, as HOS, is the constitutional source to enable the Legislature-Parliament to endorse the very basis of removal of constitutional obstacles.

Now the issue before the nation is how to convene the House, accommodate all political forces as far as possible, and move forward to drafting and promulgating a new democratic Constitution for Nepal. Distracting the country from the core issue of the country means creating obstacles on the path of constitution building ahead. People can no longer bear and tolerate the burden of prolonged transition. Even the issue of victims of conflict has been left untouched (eg. TRC formation)

Concluding Observations:

The President may not be fully aware of the scholarly writings of the contemporary constitutional scholars on the 21 st. Century Constitution Making (Cheryl Saunders, 2012) or on the Endurance of National Constitutions (Z. Elkins, T Ginsburg and J. Melton 2009),but his persistent stand for the CA election for ‘political exit’ has granted political legitimacy to the exercise of his extraordinary power under Article 158 that resulted in the heavy electoral turnout exceeding 78 percent of voters endorsing his move, as stated above. Whether it is due to his political wisdom and democratic commitment, or due to his weaknesses and lack of assertiveness, the country nevertheless appears to have been saved from getting plunged into the ditches of autocracy or prolonged conflict. Constitutional anomalies of the Interim Constitution eventually leading to the second CA election have thus proved to be a ‘blessing in disguise’ for the country. Election is now on the way bringing politics, Constitution and peace back on the right track. Now priority has to be set out with constitution making as a primary task in order for giving a good governance for the country. Thanks to President Dr. Ram Baran Yadav and Chairman Mr. Khil Raj Regmi for the immense political risks they have taken. The Election Commission, the security apparatus, the international community and the peace loving people of the country deserve special thanks for the collective efforts and successful outcome.